In this second article of our series on the House of Lords Select Committee’s recent report, entitled “The Bribery Act 2010: post-legislative scrutiny”, we come to that now inescapable topic in British law and politics — Brexit. We make no claim that Brexit will require any change to the Act itself, however, as discussed in our first article, a focus on enforcement strategy is needed in order to see the Act realise its potential. To this end, the impact of Brexit on specific EU measures that support and enhance law enforcement, such as the European Arrest Warrant and the European Investigation Order, must be considered in order to understand what the future of bribery enforcement holds.
It is now accepted that regulation and enforcement, especially against corporates, has become inescapably cross-border. Bribery enforcement is no exception. Indeed the extra-jurisdictional reach of the Bribery Act 2010 (the “Act”) makes it easier and more likely for cross-border enforcement to arise. This has given relevant European Union measures, such as the European Arrest Warrant (“EAW”) and the European Investigation Order (“EIO”), increased importance. It should come as no surprise, therefore, that in their report on the Act, the House of Lords Select Committee on the Bribery Act 2010 (the “Committee”) looked at the impact of Brexit on these EU measures.
Whilst there are a number of EU measures used in cross-border investigations and enforcement, the focus of the Committee was on the EAW and the EIO. The EAW is (unsurprisingly) an EU wide warrant, which requires EU Member States to arrest and extradite the subject of the warrant to the Member State which issued it. Successive UK governments supported the EAW; as Home Secretary in 2014, Theresa May said that losing access to it would make the UK “a honeypot for all of Europe’s criminals on the run from justice”. However, in the context of Brexit it has long been accepted that the UK’s desire to continue participating in it would be difficult to fulfil. One of the reasons for this is that the EAW comes within the remit of the Court of Justice of the European Union (“CJEU”). As such, it breaches one of the red lines set out by Theresa May, i.e. that of ending the jurisdiction of the CJEU over the UK. This article is not the place to comment on any ongoing blurring of those red lines but suffice to say, the EU has said that ending the jurisdiction of the CJEU for the UK is incompatible with continued participation in the EAW. This view was also emphatically expressed in the House of Lord’s Committee on the European Union report on “Brexit: judicial oversight of the European Arrest Warrant”.
The EIO is a relatively recent mechanism having come into force on 31 July 2017. It allows for evidential (and other) requests between Member States and requires Member States to respond to those requests within 90 days (subject to any extensions). The EIO replaced the more cumbersome mechanisms for making such requests through Mutual Legal Assistance, although it operates on the same principles - namely mutual recognition for judicial decisions when it comes to obtaining evidence for use in criminal proceedings. However, the EIO also comes within the jurisdiction of the CJEU and so the same issues that arise in the context of the EAW arise with the EIO.
In its report, the Committee warned that the loss of EU measures such as the EAW and the EIO would significantly impact the fight against international bribery unless equivalent measures were put in place. This was the result of hearing from witnesses who highlighted the importance of both the EAW and EIO and who asserted that the UK’s inability to use them, or equivalents, would be a step backwards for the enforcement of the Act.
Max Hill QC, the Director of Public Prosecutions, informed the Committee that the loss of the EIO and EAW could lead to resource implications for the CPS. Given the ongoing struggles the CPS has as a result of its lack of resources, further pressure in this respect seems unfortunate to say the least. Lisa Osofsky, Director of the SFO, agreed with Max Hill QC’s assessment; however, she also stressed that the SFO had a close working relationship with its EU counterparts, which should continue post Brexit. Donald Toon, (the holder of the magnificent title of Director of Prosperity at the NCA), also told the Committee that many investigations rely on direct contact between police forces in Member States (and across the world). These, according to Mr Toon, should be relatively unaffected by Brexit.
The UK Government is aware of the impact of the loss of measures of the EAW and EIO and the effect on bribery and corruption enforcement. Indeed, one of the previous Brexit Secretaries (David Davis), initially aimed to preserve UK participation in the EAW as part of any deal between the UK and the EU. While the UK now accepts this is not possible, it plans to negotiate an equivalent to the EAW (and we must presume the EIO and other measures) with the EU (while the UK could negotiate bilateral agreements with each Member State, this would be a far lengthier and cumbersome approach). The models in this respect are Norway and Iceland, which have been negotiating an equivalent to the EAW with the EU. The proposed treaty removes the direct jurisdiction of the CJEU and provides for a political dispute resolution mechanism in the event of a dispute. The case law of the CJEU and Norway / Iceland is kept under constant review, with the aim of ensuring a consistent application of the treaty.
The obvious downside to the Norway and Iceland approach is that such negotiations could well take a long time to complete (especially if combined with negotiations on other aspects of our future relationship with the EU) and so could lead to a lapse in the coverage offered by the EAW, EIO and other measures. Ministers have referenced Norway and Iceland as examples to follow when it comes to negotiating bilateral alternatives to EU enforcement measures. However, both countries began negotiating an extradition agreement (i.e. an equivalent to the EAW) with the EU in 2001. The agreement was signed in 2006 and concluded in 2014, but is not yet in force. The current equivalence between the UK and the EU’s enforcement measures should expedite any negotiation but there could still easily be a long period in which no equivalents are in place. In the absence of any such agreement the UK will have to rely on the 1957 Council of Europe Convention on Extradition. Unlike the EAW, this is a diplomatic process rather than judicial one. This means that extraditions will take far longer to approve.
The loss of EU wide measures such as the EAW or EIO will severely impact the UK’s enforcement of offences under the Act. While the UK Government’s stated aim was to remain within the EU wide framework for such measures, this is not compatible with Brexit. To ensure the UK can continue to take a strong stance against bribery and corruption offences with an international element (now the norm), the Government must prioritise agreeing a bilateral treaty with the EU to ensure that the UK remains able quickly and easily to make enforcement requests to other Member States. While the UK’s prosecutorial and enforcement agencies are now accustomed to liaising directly with their international counterparts, this is not a substitute for measures such as the EAW and EIO.